Building Code Compliance Mitigation for Seismic Impacts Upheld

By Cori M. Badgley

In successful challenges under the California Environmental Quality Act (“CEQA”), the petitioner generally has a second bite at the apple by challenging the return of the writ. If a petitioner is successful in its challenge to an EIR, the trial court issues a writ of mandate that requires the agency to bring the EIR into compliance with CEQA. Once the agency has complied with the writ of mandate by “fixing” the EIR, the agency files a return of the writ with the court, and if the court finds that the city has satisfied the writ of mandate, the court discharges the writ.

In Oakland Heritage Alliance v. City of Oakland (2011, Case No. A126558) ____ Cal.App.4th ____, the trial court discharged the writ of mandate after the city submitted a revised EIR. The petitioner, Oakland Heritage Alliance, appealed the trial court’s discharge of the writ on the grounds the city had still failed to adequately analyze and mitigate seismic impacts. The appellate court disagreed and upheld the trial court’s discharge of the writ.

Petitioner’s challenge focused on three areas relating to seismic impacts: (1) the significance threshold was improper; (2) the mitigation did not adequately mitigate to a less than significant level; and (3) the mitigation constituted an improper deferral of mitigation.

Although the petitioner had failed to mention the significance threshold argument during the trial court’s proceedings on the return of the writ and was therefore barred from bringing it up on appeal, the appellate court addressed the issue and found that the significance threshold used to evaluate seismic impacts was proper. The court based its conclusion on two grounds. First, contrary to petitioner’s assertions, the city was not required to formally adopt a significance threshold that differed from the threshold listed in Appendix G of the CEQA Guidelines. According to the court, CEQA Guidelines section 15064.7 encouraged the adoption of the standard thresholds of significance, but did not require it. Second, the threshold of significance used by the city “was effectively coextensive with the CEQA Guidelines” Appendix G, and therefore, petitioner’s argument had no merit.

In relation to the second issue of adequate mitigation, the two mitigation measures adopted by the city required that the buildings comply with all applicable state and local regulations and comply with the final design parameters and building recommendations that would be included in the geotechnical investigations for each building site. The appellate court found that substantial evidence supported the city’s determination that the mitigation reduced seismic impacts to a less than significant level. The court cited to Tracy First v. City of Tracy (2009) 177 Cal.App.4th 912, which found that the incorporation of state energy efficiency standards into the project constituted proper mitigation. In this case, the thorough discussion of the building codes and local ordinances as well as the duties of the geotechnical engineer constituted substantial evidence that the mitigation would reduce impacts. The added discussion provided the required “why” discussion, explaining how code compliance operates as effective mitigation.

Like the second issue of proper mitigation, the court disagreed with petitioner’s final argument that the two mitigation measures for seismic impacts constituted an improper deferral of mitigation. The court found that the mitigation measures properly included performance standards that had to be met in order to insure that the project impacts would be mitigated. Therefore, the city did not improperly defer mitigation.

In the end, the petitioner’s attempt to further delay the project and require additional analysis by the city failed. This case provides a good example for agencies of the information that should be included in the CEQA document when the mitigation involves adherence to state codes and local regulations. A thorough explanation of the state codes and local regulations referred to in the mitigation goes a long way to providing substantial evidence in the record.

Cori M. Badgley is an attorney at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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